The two key elements for a lawful redundancy are that;
• The role must be being restructured or disestablished for genuine business reasons: and
• The process the employer follows must be fair and just.
If the employer can point to genuine commercial reasons for making the role redundant and show that they were the real reason for the redundancy, then the Courts cannot interfere with that decision. What the Courts will examine, however, is whether the redundancy was not genuine but was used to mask some ulterior motive for removing the employee, such as poor performance or misconduct. Employers who blur redundancy and performance/misconduct issues often get into considerable difficulty.
In practice, however, it is the process followed that more often creates a problem for employers following a proper process will likely avoid the bringing of personal grievance claims. That process will vary depending on the circumstances but consultation is usually the key. There should be consultation over the decision to restructure before it is finalized. Ideally, the employee should be informed as to the employer’s proposal. That proposal should contain enough information for the employee to understand the changes being considered and why. The employee should be provided with an opportunity to provide feedback on that proposal. Any feedback should then be considered by the employer in good faith before a final decision is made on whether the restructure is required. The employee should also be invited to obtain independent advice throughout the process.
straightforward, in practice complications often arise. The employee may, for example, refuse to participate in the consultation, demand more information or request that the process is slowed down. Deciding who, amongst a group of employees, should be redundant can also be a complex issue. Similarly, redeployment issues can complicate things – can the employer make the employee take on another role, or can the employee insist he/she is offered a vacancy?
Advice is simple - get good advice…particularly as your employee probably already is!